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MEMORANDUM AND AFFIDAVIT
In Support of David Haeg’s
APPLICATION FOR POST-CONVICTION RELIEF
Applicant respectfully submits the following points and
authorities in support of his application for Post-Conviction
Relief. See PCR Application, its attached facts, evidence, and
exhibits.
INTRODUCTION
In March 2004 Haeg participated in the extremely controversial
Wolf Control Program (WCP), which permitted the shooting of wolves
from airplanes. The State of Alaska (SOA) told and induced Haeg
hunting guide Haeg to take wolves outside the WCP area but claim
they had been taken inside the WCP area - in order that the WCP be
seen as effective and not shut down. The SOA then prosecuted Haeg
for doing exactly as they asked. In addition, the SOA falsified all
evidence locations to where Haeg guided. The SOA used the false
evidence locations to claim that Haeg used the permit as a “guise”
to kill wolves in his hunting guide area in order to keep the
wolves from killing the moose Haeg offered to clients - claiming
“the great economic benefit Haeg received by killing wolves where
he guides” justified a hunting/guiding case instead of a WCP case –
which by law prevented charges affecting Haeg’s guiding business.
After Haeg’s specific inquiry Haeg’s attorneys counseled: (1) the
SOA telling and inducing him to do something that they afterward
charged him with doing was not a “legal defense”; (2) there was
nothing Haeg could do about the SOA falsifying all evidence
locations to his guide area; (3) Haeg had no right to a prompt
postseizure hearing to protest the illegal search and seizure
warrants or being deprived of the property that was his primary
means to provide a livelihood; (4) Haeg had no right to bond his
property out; (5) WCP law did not protect him from game, hunting ,
or guiding violations; (6) the SOA gave Haeg immunity to compel him
to give a statement but afterward could use the statement to
prosecute him; (7) the SOA could break a plea agreement (PA), by
changing the agreed to and already filed charges to charges far
more severe, after Haeg had given up a year of guiding in reliance
on it; (8) there was no way to protest the SOA giving known false
testimony against Haeg at trial; (9) there was no way to enforce
subpoenas; (10) the SOA did not have to give Haeg credit for the
year of guiding like they had promised before Haeg gave the year
up; and (11) Haeg could not appeal his sentence. After he was
convicted and severely sentenced Haeg found out all the above
counsel was false and that there were many other protections that
his counsel had failed to tell him about. In addition, Haeg found
out evidence he had placed in the official court record, over the
objections of his attorneys, of the SOA telling and inducing him to
take wolves outside the WCP area but mark them as being taken
inside and of all Haeg had done for the PA, was missing while
evidence proving it had been submitted remained in the record. The
evidence that Haeg’s attorneys intentionally, knowingly, and/or
negligently used Haeg’s ignorance of law, procedure, and
constitution to allow the SOA to violate nearly all of Haeg’s
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constitutional rights in order to obtain an unjust conviction
and sentence is shocking. The evidence that the attorneys’
performance was grossly deficient is shocking. The evidence that
that official court record of Haeg’s case itself was tampered with
is shocking. The prejudice of these constitutional violations is
shocking, resulting in the overwhelming likelihood that, had Haeg’s
attorneys preformed adequately, the outcome of Haeg’s prosecution
would have been different.
I
LEGAL STANDARDS A. Statutory and Rule 35.1 Provisions. Haeg is
entitled to post-conviction relief if he shows that his conviction
or sentence were in violation of the constitution of the United
States or the constitution or laws of Alaska; that there exists
evidence of material facts, not previously presented and heard,
that requires vacation of the conviction or sentence in the
interest of justice; and/or that Haeg was not afforded effective
assistance of counsel at trial or on direct appeal. See AS
12.72.010 (1), (4), (9) and Alaska Criminal Rule 35.1 (1), (4),
(9). B. Ineffectiveness Standards. 1. U. S. Constitution. The Sixth
Amendment to the United States Constitution guarantees that an
accused in a criminal case shall receive the assistance of counsel.
Powell v. Alabama, 308 U.S. 444 (U.S. Supreme Court 1940) This
Sixth Amendment guarantee applies to the states through the
Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (U.S.
Supreme Court 1963) “[T]he right to counsel is the right to the
effective assistance of counsel.” McMann v. Richardson, 397 U.S.
759 (U.S. Supreme Court 1970) Criteria for finding ineffectiveness:
“First, the defendant must show that counsel’s performance was
deficient. Second, the defendant must show that the deficient
performance prejudiced the defense.” In respect to the deficiency,
the defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different. [A] defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in the
case. The result of a proceeding can be rendered unreliable, and
hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have
determined the outcome” Strickland v. Washington, 466 U.S. 668
(U.S. Supreme Court 1984) “Of all the rights that an accused person
has, the right to be represented by counsel is by far the most
pervasive for it affects his ability to assert any other rights he
may have.” United States v. Cronic, 466 U.S. 648 (U.S. Supreme
Court 1984)
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2. Alaska Constitution. Article I, Section 11 of the Alaska
Constitution also guarantees assistance of counsel. The Alaska
Constitution provides more protection then the United States
Constitution and guarantees counsel in more instances. Roberts v.
State, 458 P.2d 3240 (Ak 1969) Blue v. State, 558, 558 P.2d 636 (Ak
1977) The Alaska Constitution lessens the burden of proving
ineffective assistance of counsel (IAOC). While the United States
Constitution requires a “reasonable probability” the deficient
performance contributed to the outcome the Alaska Constitution only
requires a “reasonable doubt” that the deficiency contributed to
the outcome. Risher v. State, 523 P.2d 421 (Ak Supreme Court 1974)
3. Tactical justification. In both state and federal courts,
counsel’s competence is presumed, and a further presumption is that
an attorney’s actions were “motivated by sound tactical
considerations.” State v. Jones, 759 P2.d 558, 569 (Ak 1980).
Exceptions to the “tactical” justification rule, “A mistake made
out of ignorance rather then from strategy cannot be later
validated as being tactically defensible.” Kimmelman v. Morrison,
477 U.S. 365 (U.S. Supreme Court 1986) “The record …underscores the
unreasonableness of counsel’s conduct by suggesting that their
failure to investigate thoroughly stemmed from inattention, not
strategic judgment.” Wiggins v. Smith, 539 U.S. 510 (U.S. Supreme
Court 2003) If the “tactic” is objectively unreasonable, that is,
one that “no reasonably competent attorney would have adopted under
the circumstances” ineffectiveness will be found. State v. Jones
Erroneous or incorrect advice of basic rights, particularly after
specific inquiry, is always found to be deficient and unreasonable
performance by counsel. If erroneous or incorrect advice is given
after specific inquiry all that remains is to find a “reasonable
doubt” the erroneous or incorrect advice contributed to the
outcome. “We believe it self-evident that an indispensable
component of the guarantee of effective assistance of counsel is
the accused's right to be advised of basic procedural rights,
particularly when the accused seeks such advice by specific
inquiry. Without knowing what rights are provided under law, the
accused may well be unable to understand available legal options
and may consequently be incapable of making informed decisions.”
Smith v. State, 717 P.2d 402 (Ak 1986) “In order to render
"effective assistance"… counsel must be familiar with the facts of
the case and the applicable law so that he can fully advise the
defendant of the options available to him.” Arnold v. State, 685
P.2d 1261, (Ak 1984)
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“It is a denial of the right to effective assistance of counsel
for an attorney to advise a client erroneously on a clear point of
law.” Beasley v. U.S., 491 F2d 687 (6th Cir. 1971) 4. Conflicts of
Interest IAOC is established and prejudice presumed when counsel,
who is burdened by an actual conflict of interest, represents a
defendant. “[T]he conflict itself demonstrated a denial of the
right to have the effective assistance of counsel. Thus, a
defendant who shows that a conflict of interest actually affected
the adequacy of his representation need not demonstrate prejudice
in order to obtain relief. Because it is in the simultaneous
representation of conflicting interests against which the Sixth
Amendment protects a defendant, he need go no further than to show
the existence of an actual conflict. An actual conflict of interest
negates the unimpaired loyalty a defendant is constitutionally
entitled to expect and receive from his attorney.” Cuyler v.
Sullivan, 446 U.S. 335 (U.S. Supreme Court 1980) “[I]n a case of
joint representation of conflicting interests the evil – it bears
repeating – is in what the advocate finds himself compelled to
refrain from doing….It may be possible in some cases to identify
from the record the prejudice resulting from an attorney’s failure
to undertake certain trial tasks, but even with a record of the
sentencing hearing available it would be difficult to judge
intelligently the impact of a conflict on the attorney’s
representation of a client. And to assess the impact of a conflict
of interests on the attorney’s options, tactics, and decisions in
plea negotiations would be virtually impossible.” Holloway v.
Arkansas, 435 U.S. 475 (U.S. Supreme Court 1978) “[P]rejudice is
presumed when counsel is burdened by an actual conflict of
interest. In those circumstances, counsel breaches the duty of
loyalty, perhaps the most basic of counsel’s duties. Moreover, it
is difficult to measure the precise effect on the defense of
representation corrupted by conflicting interests.” Strickland v.
Washington “Defense counsel must perform at least as well as a
lawyer with ordinary training and skill in the criminal law and
must conscientiously protect his client’s interest, undeflected by
conflicting considerations.” Risher v. State
II
ERRONEOUS COUNSEL AFTER SPECIFIC INQUIRY AND RESULTING
PREJUDICE
“A mistake made out of ignorance rather then from strategy
cannot be later validated as being tactically defensible.”
Kimmelman v. Morrison (U.S. Supreme Court) “We believe it
self-evident that an indispensable component of the guarantee of
effective assistance of counsel is the accused's right to be
advised of basic procedural rights, particularly when the accused
seeks such advice by specific inquiry. Without knowing what rights
are
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provided under law, the accused may well be unable to understand
available legal options and may consequently be incapable of making
informed decisions.” Smith v. State, 717 P.2d 402 (Ak 1986) “In
order to render "effective assistance"… counsel must be familiar
with the facts of the case and the applicable law so that he can
fully advise the defendant of the options available to him.” Arnold
v. State, 685 P.2d 1261, (Ak 1984) “It is a denial of the right to
effective assistance of counsel for an attorney to advise a client
erroneously on a clear point of law.” Beasley v. U.S., 491 F2d 687
(6th Cir. 1971) “From counsel’s function as assistant to the
defendant derive… the more particular duties to consult with the
defendant on important decisions and to keep the defendant
informed…The reasonableness of counsel’s actions may be determined
or substantially influenced by the defendants own statements or
actions. Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information
supplied by the defendant. In short, inquiry into counsel’s
conversations with the defendant may be critical to a proper
assessment of counsel’s …litigation decisions.” Strickland v.
Washington A. Entrapment Not a Legal Defense
1. Law
“Entrapment” is a complete defense to a criminal charge, on the
theory that “Government agents may not originate a criminal design,
implant in an innocent person's mind the disposition to commit a
criminal act, and then induce commission of the crime so that the
Government may prosecute.” Mere suggestion without inducement is
fatal to an entrapment defense, as is a predisposition to commit
the crime - such as a prior conviction of the same or related
crime. Jacobson v. United States, 503 U.S. 540 (U.S. Supreme Court
1992) Sorrells v. United States, 287 U.S. 435 (U.S. Supreme Court
1932). 2. Facts
Haeg, from childhood to when he was prosecuted at age 38, made
his entire livelihood by fishing, hunting, trapping, and guiding –
without any criminal history of anything whatsoever. Just before he
participated in the WCP Haeg was testified at an Alaska Board of
Game (the State agency who created and ran the WCP) meeting in
Fairbanks about the devastating effect uncontrolled wolf numbers
were having on ungulates. At this meeting Board of Game member Ted
Spraker told Haeg how important it was to the SOA that the WCP was
not shut down; that the WCP was likely going to be shut down
because so far it was ineffective; that Haeg had to take more
wolves to make sure the WCP was not shut down; that it was far more
important for Haeg to be killing wolves then testifying; and that
if Haeg ended up taking wolves outside the WCP area to mark them as
being taken inside the WCP area. Spraker also told Haeg that he was
surprised that people were not poisoning wolves and explained
exactly what kind of poison worked best and how and where to obtain
it. [Exhibit 10]
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Haeg was then prosecuted for doing exactly as the SOA told and
induced him to do. The SOA also falsified all evidence locations to
Haeg’s guiding area and specifically used this to justify filing
hunting/guiding charges against Haeg – stating Haeg’s intent in
taking the wolves outside the WCP area was to benefit his hunting
guide business by removing the wolves that were killing the moose
he offered to clients. [Exhibits 1, 18, 22 and TR] In newspaper
articles the SOA stated Haeg was just “a bad apple” and that the
SOA had nothing to do with Haeg taking wolves outside the WCP area
and claiming they had been taken inside. [Exhibit 14] Haeg’s
attorneys told him that being told and induced by the government to
do exactly what they later charged him with was not a “legal”
defense. [Exhibit 4] Over his attorney’s objections, Haeg wrote a
letter to the Court of what he was told by the SOA and that “I
don’t know if I was exactly brainwashed at this point but I was
feeling immense pressure from all sides to kill wolves…so the
program would not be a failure and terminated.” [Exhibit 10] This
letter also stated this was going to be Haeg’s verbal testimony at
his PA hearing. Immediately after the SOA received this letter they
broke the PA by filing an amended information greatly increasing
the severity of the charges so Haeg never got to testify about
this. [Exhibit 11] Long after Haeg was convicted, sentenced, or
could use it in his appeal, he found out his letter evidencing that
the SOA told and induced him to do what they then prosecuted him
for had been removed out of the record while evidence it had been
submitted remained in the record. [Exhibit 13 and TR] Later yet BOG
member Spraker said “it was absolute bullshit you (Haeg) were
charged as a guide.” 3. Prejudice
Jacobson v. United States and Sorrells v. United States prove
beyond doubt the government suggesting and inducing Haeg’s actions
was a “legal” defense - and thus the counsel from Haeg’s attorneys
it was not a legal defense was false, an “unprofessional error”
proving “deficient performance” – the first criteria of IAOC. The
prejudice caused by this “deficient performance” was devastating.
Had his attorneys told him the truth (1) Haeg would have raised the
defense that the government telling a guide like Haeg that the
entire future of the WCP depended on him killing more wolves and
that if he took wolves outside the area to just mark them on the
inside could easily cause that person to commit that crime. The
inducement was very real and very great. Haeg’s lack of any prior
criminal history is evidence he was not predisposed. Thus Haeg
would have had a compelling and complete defense to the charges he
faced – proving the prejudice of the false counsel. This defense,
even if not successful, would have evidenced Haeg’s intent was to
benefit the WCP at the SOA’s suggestion - and not to benefit his
business, precluding the intent needed to justify hunting/guiding
charges - proving the prejudice of the false counsel. When this is
combined with the fact the SOA falsified the evidence locations to
Haeg’s guide area to manufacture an intent to
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benefit his business, the case against allowing devastating
hunting/guiding charges is overwhelming - proving the prejudice of
the false counsel. Finally, after the PA was broken before Haeg
could testify about it, the last evidence of Haeg’s entrapment
defense (the letter), which he had placed in the court record over
the objections of his attorneys, was eliminated.
In other words three independent “errors” happened that had one
thing in common – they all kept out of the record the SOA had told
and induced Haeg to take wolves outside the area but claim they had
been taken inside the area - in order to fraudulently make the WCP
a success. These “errors” destroyed all trace of Haeg’s “complete
defense” to the charges filed against him. The result is a virtual
certainty of a difference in the outcome of Haeg’s case, when the
second criteria that must be met to prove IAOC only requires a
reasonable doubt of a different outcome. B. No Way to Protest False
Search and Seizure Affidavits or Warrants
1. Law
Material falsification of search warrant affidavits and/or
warrants themselves is ground for all evidence/property seized to
be suppressed/returned. "[A]ll evidence obtained by searches &
seizures in violation of the Federal Constitution is inadmissible
in a criminal trial in a state. Nothing can destroy a government
more quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence.” Mapp v. Ohio,
367 U.S. 643 (U.S. Supreme Court 1961) "Once defendant has shown
that specific statements in affidavit supporting search warrant are
false, together with statement of reasons in support of assertion
of falsehood, burden then shifts to State to show that statements
were not intentionally or recklessly made." Lewis v. State, 9 P.3d
1028, (Ak.,2000) "State & federal constitutional requirement
that warrants issue only upon a showing of probable cause contains
the implied mandate that the factual representations in the
affidavit be truthful." State v. Davenport, 510 P.2d 78, (Ak.,1973)
“Misstatements on warrants were material and intentional,
justifying suppression of evidence obtained through use of the
warrants.” State v. White, 707 P2d 271 (Ak., 1985) “’[Defendant]
has everything to gain and nothing to lose’ in filing a motion to
suppress…” U.S. v. Molina, 934 F.2d 1440 (9 Cir. 1991) th Alaska
Criminal Rule 12(b)(3) allows a motion to suppress evidence on the
ground it was illegally obtained.
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Alaska Criminal Rule 37(c) allows a motion for the return of
property and to suppress evidence on the ground it was illegally
seized. 2. Facts In Haeg’s case all search and seizure affidavits,
and the resulting warrants, falsified evidence locations to GMU 19C
– Haeg’s guide area – false locations that were material to the
SOA’s case. [Exhibit 1] These false affidavits and warrants were
then used to search Haeg’s home and lodge and to seize evidence and
Haeg’s property. [Exhibit 1] The property seized was Haeg’s primary
means to provide a livelihood. [Exhibits 1 and 4] Haeg and Zellers
told their attorneys about the false locations on all the
affidavits and on all the warrants and the attorneys told them
nothing could be done about it. [Exhibits 4, 5, and 7] All physical
evidence found before warrants were issued had its location
falsified to Haeg’s guiding area. This false evidence location was
then used to justify the warrants that obtained all other physical
evidence. In other words ALL physical evidence was tainted by the
false location. The SOA continued to falsify the evidence locations
during trial testimony and only upon cross-examination admitted it
was false – proving the SOA had knowingly falsified the evidence
locations – yet, knowing it was false, was willing to swear under
oath it was not. [Exhibit 18 – TR 418-479] The court specifically
used the false location as justification for Haeg’s severe
sentence. [Exhibit 22 - TR 1437-1441] On appeal the Alaska Court of
Appeals held Haeg’s attorney’s waived Haeg’s right to suppress the
evidence since they did not raise it prior to trial. [Exhibit 31]
3. Prejudice
Alaska Criminal Rules 12(b)(3) and 37(c), backed up by
overwhelming caselaw, prove beyond any doubt something could have
been done about the material false evidence location on all the
affidavits/warrants used to search and seize Haeg’ property, and
thus the counsel from Haeg’s attorneys was false, an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. The prejudice caused by this “deficient
performance” was devastating. Had his attorneys told him the truth
(1) Haeg would have suppressed ALL physical evidence – ending
Haeg’s prosecution - proving the prejudice of the false counsel;
(2) Haeg’s property would have been returned – allowing him to
continue making a livelihood - proving the prejudice of the false
counsel; (3) the SOA’s justification for devastating
hunting/guiding charges would have vanished and Haeg’s true intent
would have appeared – he was doing as the SOA told and
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induced him to - proving the prejudice of the false counsel; (4)
the court’s justification for Haeg’s severe sentence would have
vanished - proving the prejudice of the false counsel and (5) this
issue would not have been “waived” on appeal - proving the
prejudice of the false counsel. The result is a absolute certainty
of a difference in the outcome of Haeg’s case, when the second
criteria that must be met to prove IAOC only requires a reasonable
doubt of a different outcome. C. No Right to a Postseizure Hearing
to Protest Property Deprivation and No Right to Bond Out Property
1. Law Notice of a hearing and/or a hearing itself is required
within days if not hours of seizure of property that is used as the
primary means of providing a livelihood. In addition, the property
must be allowed out on bond. Waiste v. State, 10 P.3d 1141 (Ak
Supreme Court 2000) "This court's dicta, however, and the
persuasive weight of federal law, both suggest that the Due Process
Clause of the Alaska Constitution should require no more than a
prompt postseizure hearing... The State argues that a prompt
postseizure hearing is the only process due, both under general
constitutional principles and under this court's precedents on
fishing-boat seizures, whose comments were not dicta...But given
the conceded requirement of a prompt postseizure hearing on the
same issues, in the same forum, 'within days, if not hours' the
only burden that the State avoids by proceeding ex parte is the
burden of having to show its justification for a seizure a few days
or hours earlier... The State does not discuss the private interest
at stake, and Waiste is plainly right that it is significant: even
a few days' lost fishing during a three-week salmon run is serious,
and due process mandates heightened solicitude when someone is
deprived of her or his primary source of income... As the Good
Court noted, moreover, the protection of an adversary hearing 'is
of particular importance [in forfeiture cases], where the
Government has a direct pecuniary interest in the outcome.' An
ensemble of procedural rules bounds the State's discretion to seize
vessels and limits the risk and duration of harmful errors. The
rules include the need to show probable cause to think a vessel
forfeitable in an ex parte hearing before a neutral magistrate, to
allow release of the vessel on bond, and to afford a prompt
postseizure hearing.” AS 28.05.131 Opportunity For Hearing Required
(a) Unless otherwise specifically provided, or unless immediate
action in suspending, revoking, canceling, limiting, restricting,
denying, or impounding is necessary for the protection of the
health, safety, or welfare of the public, the Department of Public
Safety or the Department of Administration, as appropriate, shall
give notice of the opportunity for an administrative hearing before
a license, registration, title, permit, or privilege issued or
allowed under this title or regulations adopted under this title is
suspended, revoked, cancelled, limited, restricted, or denied or a
vehicle is impounded by that department. If action is required
under this section and prior opportunity for a hearing cannot be
afforded, the appropriate department shall promptly give notice of
the opportunity for a hearing as soon after the action as possible
to the parties concerned. AS 28.90.990 Definitions for Title
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(a)(16) "motor vehicle" means a vehicle which is self-propelled
except a vehicle moved by human or animal power; (a)(28) "vehicle"
means a device in, upon, or by which a person or property may be
transported or drawn upon or immediately over a highway or
vehicular way or area; "vehicle" does not include (A) devices used
exclusively upon stationary rails or tracks; (B) mobile homes; 2.
Facts While he was using it as his primary means to provide
livelihood, Haeg’s property (including airplane) was seized with
false warrants and affidavits. [Exhibit 1] Haeg asked the troopers
seizing his airplane when he could get it back because he had
clients coming in the next day and he needed it. The troopers
responded, “Never.” [Exhibit 3] Haeg hired his first attorney weeks
later and asked him if there was any way to protest the seizure,
ask for the plane back, or just bond it out. Haeg’s attorney told
him the law did not allow a hearing to protest the property seizure
or deprivation and there was no right to bond property out.
[Exhibit 4] No postseizure hearing, or even notice, was ever given
or afforded, Haeg was never allowed to bond his property out, and
years later the court forfeited Haeg’s property. [Exhibit 2 and TR]
The Alaska Court of Appeals ruled that Haeg had no right to a
prompt postseizure hearing because he hired an attorney weeks after
seizure – because the attorney would have told Haeg of his right to
a hearing to protest the seizure and of his right to bond his
property out. [Exhibit 31 – AR] 3. Prejudice
The Alaska Supreme Court case Waiste v. State proves beyond
doubt the law allowed a prompt postseizure hearing (it even
required one “within days if not hours”) and required property be
allowed to be bonded out, and thus the counsel from Haeg’s
attorneys that the law did not allow a postseizure hearing and did
not require Haeg be allowed to bond his property out was false, an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. Even the Alaska Bar Association Examination,
required to be passed by all attorneys practicing in Alaska, proves
due process requires a prompt postseizure hearing when seizing
property, especially property used to provide a livelihood.
[Exhibit 34] The prejudice caused by this “deficient performance”
was devastating. Had his attorneys told him the truth (1) Haeg
would have demanded a hearing to protest having his house searched
and being deprived of his livelihood with false warrants and
affidavits – certainly returning his property, suppressing
evidence, destroying the SOA’s justification for hunting/guiding
charges, and almost certainly ending prosecution - proving the
prejudice of the false counsel; (2) Haeg would have asked for his
property to be returned and suppressed as evidence because he was
not
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notified of or provided a postseizure hearing “within days if
not hours” – allowing him not to be bankrupt during the years
before his case was even finished and almost certainly ending
prosecution - proving the prejudice of the false counsel; and (3)
Haeg’s property, if not returned because of the illegal
affidavits/warrants and/or lack of prompt postseizure hearing,
would have absolutely been returned on bond – allowing him not to
be bankrupt during the years before he was convicted or sentenced -
proving the prejudice of the false counsel. The result is an
irrefutable difference in the outcome of Haeg’s case, when the
second criteria that must be met to prove IAOC only requires a
reasonable doubt of a different outcome. D. No Right Against
Self-Incrimination
1. Law
The Fifth Amendment of the United States Constitution and
Article 1, Section 9 of the Alaska Constitution prohibit compelling
defendants to be witnesses against themselves. “[A] defendant in a
criminal case is deprived of due process of law if his conviction
is founded, in whole or in part, upon an involuntary [statement],
without regard for the truth or falsity. . . even though there is
ample evidence aside from the [statement] to support the
conviction.” Jackson v. Denno, 378 U.S. 368 (U.S. Supreme Court
1964) “A defendant can be required to give an incriminating
statement if he is granted immunity equal to that of the right
against self-incrimination, as risk of self-incrimination is
removed.” Counselman v. Hitchcock, 142 U.S. 547 (U.S. Supreme Court
1892) The federal government holds that a defendant required to
give a statement can still be prosecuted for actions referred to in
the statement as long as there is no use whatsoever made of the
statement. “The Government must do more than negate the taint; it
must affirmatively prove that its evidence is derived from a
legitimate source wholly independent of the compelled testimony.”
Kastigar v. United States, 406 U.S. 441 (U.S. Supreme Court 1972)
This requires no direct, indirect, evidentiary, or non-evidentiary
use or derivative use of the statement. It precludes use such as
the decision to prosecute, use of witnesses exposed to the
immunized testimony, and requires actions such as sealing the
immunized testimony and a keeping a log of who was exposed to it,
with no one exposed allowed to be part of the prosecuting team:
“[N]one of the testimony or exhibits…became known to the
prosecuting attorneys…either from the immunized testimony itself or
from leads derived from the testimony, directly or indirectly…we
conclude that the use of immunized testimony by witnesses to
refresh their memories, or otherwise to focus their thoughts,
organize their testimony, or alter their prior or contemporaneous
statements, constitutes evidentiary use rather than nonevidentiary
use. This observation also applies to witnesses who studied,
reviewed, or were exposed to the immunized testimony in order to
prepare themselves or others as witnesses.
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When the government puts on witnesses who refresh, supplement,
or modify that evidence with compelled testimony, the government
uses that testimony to indict and convict. From a prosecutor's
standpoint, an unhappy byproduct of the Fifth Amendment is that
Kastigar may very well require a trial within a trial (or a trial
before, during, or after the trial) if such a proceeding is
necessary for the court to determine whether or not the government
has in any fashion used compelled testimony to indict or convict a
defendant. If the government chooses immunization, then it must
understand that the Fifth Amendment and Kastigar mean that it is
taking a great chance that the witness cannot constitutionally be
indicted or prosecuted. Finally, and most importantly, an ex parte
review in appellate chambers is not the equivalent of the open
adversary hearing contemplated by Kastigar. See United States v.
Zielezinski, 740 F.2d 727, 734 (9th Cir.1984) Where immunized
testimony is used… the prohibited act is simultaneous and
coterminous with the presentation; indeed, they are one and the
same. There is no independent violation that can be remedied by a
device such as the exclusionary rule: the…process itself is
violated and corrupted, and the [information or trial] becomes
indistinguishable from the constitutional and statutory
transgression. This burden may be met by establishing that the
witness was never exposed to North's immunized testimony, or that
the allegedly tainted testimony contains no evidence not "canned"
by the prosecution before such exposure occurred. If the government
has in fact introduced trial evidence that fails the Kastigar
analysis, then the defendant is entitled to a new trial. If the
same is true as to grand jury evidence, then the indictment must be
dismissed.” United States v. North, 910 F.2d 843 (D.C.Cir. 1990)
Alaska’s constitution and law holds that a defendant cannot ever be
prosecuted for actions referred to in a compelled statement. See AS
12.50.101 and State of Alaska v. Gonzalez, 853 P2d 526 (Ak Supreme
Court 1993): “We do not doubt that, in theory, strict application
of use and derivative use immunity would remove the hazard of
incrimination. Because we doubt that workaday measures can, in
practice, protect adequately against use and derivative use, we
ultimately hold that [former] AS 12.50.101 impermissibly dilutes
the protection of article I, section 9. Procedures and safeguards
can be implemented, such as isolating the prosecution team or
certifying the state's evidence before trial, but the accused often
will not adequately be able to probe and test the state's adherence
to such safeguards. One of the more notorious recent immunity
cases, United States v. North, 910 F.2d 843 (D.C.Cir.) modified,
920 F.2d 940 (D.C.Cir.1990) illustrates another proof problem posed
by use and derivative use immunity. First, the prosecution could
use the compelled testimony to refresh the recollection of a
witness testifying at North's criminal trial. The second problem,
however, is more troublesome. In a case such as North, where the
compelled testimony receives significant publicity, witnesses
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receive casual exposure to the substance of the compelled
testimony through the media or otherwise. Id. at 863. In such
cases, a court would face the insurmountable task of determining
the extent and degree to which "the witnesses' testimony may have
been shaped, altered, or affected by the immunized testimony." Id.
The second basis for our decision is that the state cannot
meaningfully safeguard against nonevidentiary use of compelled
testimony. Nonevidentiary use "include assistance in focusing the
investigation, deciding to initiate prosecution, refusing to
plea-bargain, interpreting evidence, planning cross-examination,
and otherwise generally planning trial strategy." United States v.
McDaniel, 482 F.2d 305, 311 (8th Cir.1973). Innumerable people
could come into contact with the compelled testimony, either
through official duties or, in a particularly notorious case,
through the media. Once persons come into contact with the
compelled testimony they are incurably tainted for nonevidentiary
purposes. This situation is further complicated if potential jurors
are exposed to the witness' compelled testimony through wide
dissemination in the media. When compelled testimony is
incriminating, the prosecution can "focus its investigation on the
witness to the exclusion of other suspects, thereby working an
advantageous reallocation of the government's financial resources
and personnel." With knowledge of how the crime occurred, the
prosecution may refine its trial strategy to "probe certain topics
more extensively and fruitfully than otherwise." Id. These are only
some of the possible nonevidentiary advantages the prosecution
could reap by virtue of its knowledge of compelled testimony. Even
the state's utmost good faith is not an adequate assurance against
nonevidentiary uses because there may be "non-evidentiary uses of
which even the prosecutor might not be consciously aware." State v.
Soriano, 68 Or.App. 642, 684 P.2d 1220, 1234 (1984) (only
transactional immunity can protect state constitutional guarantee
against nonevidentiary use of compelled testimony). We sympathize
with the Eighth Circuit's lament in McDaniel that "we cannot escape
the conclusion that the [compelled] testimony could not be wholly
obliterated from the prosecutor's mind in his preparation and trial
of the case." McDaniel, 482 F.2d at 312. This incurable inability
to adequately prevent or detect nonevidentiary use, standing alone,
presents a fatal constitutional flaw in use and derivative use
immunity. Because of the manifold practical problems in enforcing
use and derivative use immunity we cannot conclude that [former] AS
12.50.101 is constitutional. Mindful of Edward Coke's caution that
‘it is the worst oppression, that is done by colour of justice,’ we
conclude that use and derivative use immunity is constitutionally
infirm.” State of Alaska v. Gonzalez, 853 P2d 526 (Ak Supreme Court
1993)
2. Facts
Cole, Haeg’s first attorney, told Haeg that the SOA had given
Haeg “immunity” in order to compel him to give a statement – that
Haeg was going to be “king for a day” for this statement. [Exhibit
4]
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On June 11, 2004 Haeg gave the 5-hour immunized statement to
prosecutor Leaders and trooper Gibbens, who had Haeg mark all wolf
kill locations, all of which Haeg was later prosecuted for, on a
map provided by prosecutor Leaders and trooper Gibbens. [Exhibit 5]
This statement incriminated both Haeg and Zellers. [Exhibit 5]
Prosecutor Leaders and trooper Gibbens, the very same people who
took Haeg’s immunized statement, used Haeg’s statement and map in
numerous ways to build their case against Haeg, including releasing
Haeg’s incriminating statement to Alaska’s biggest newspapers;
obtaining and/or finding witnesses against Haeg; modifying all
witness testimony with Haeg’s statement; and specifically using
Haeg’s statement in the charging information as probable cause for
all charges against Haeg. [Exhibits 9, 11, 12, 14, 17, 19, 30, and
TR] On June 23, 2004, because of Haeg’s statement, Zellers
cooperated with and gave a statement to trooper Gibbens and
prosecutor Leaders. [Exhibit 6] Both Zellers and Fitzgerald,
Zellers attorney, testified under oath Zellers statement and
cooperation was a direct result of Haeg’s statement. [Exhibit 6]
During Zellers interview prosecutor Leaders and trooper Gibbens
used the same map upon which Haeg had marked all wolf kill sites,
told Zellers that Haeg had made the marks, and asked Zellers to
confirm the marks were wolf kill sites that he and Haeg had
participated in. [Exhibit 7] Fitzgerald testified under oath that
both Zellers and Haeg had “transactional” immunity for their
statements. [Exhibit 29] “Transactional” immunity means there can
be no prosecution for actions referred to in the statement. Cole
then told Haeg that the SOA could prosecute Haeg for the crimes
referred to in his compelled statement and that the SOA could use
Haeg’s statement to prosecute Haeg. [Exhibit 4] In a May 6, 2005
reply brief to an unrelated motion prior to trial, Haeg’s second
attorney, Robinson, wrote that it was a violation of Evidence Rule
410 for Haeg’s statement to be used by prosecutor Leaders to
support the charging information. [Exhibit 17] Robinson did not
protest that Haeg had also been given immunity to compel the
statement or protest the other innumerable uses of Haeg’s statement
(or ask for the required Kastigar hearing) - just the completely
obvious and direct use in the written charging information which
specifically stated that David Haeg was interviewed, this is what
he said, and this is why the SOA is charging him with crimes. [TR]
Even though this reply was copied to both prosecutor Leaders and
the court no action was taken and Haeg proceeded to trial on an
information that specifically and directly used his immunized
statement as probable cause for all charges. [Exhibit 12] Robinson
told Haeg that he could be prosecuted after giving a compelled
statement and that since the SOA was only going to present the
incriminating parts of the statement against him at trial Haeg had
to testify at trial to bring the exculpatory parts. [Exhibits 15
and 37 – TR 741-908] At trial Haeg’s immunized statement was used
against him in numerous ways. The map Haeg had created during his
statement, upon which he had marked and numbered all wolf kill
sites he was being prosecuted for, was the primary trial exhibit
(exhibit #25) against him. [Exhibit 5 – TR 280-286, 331-612,
645-646, 914]] Zellers testified against Haeg at trial because of
Haeg’s statement. [Exhibit 6] State Biologist Toby Boudreau’s trial
testimony was unarguably tainted by Haeg’s statement, repeatedly
referring to “Tony Lee”, a material witness
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who the SOA learned of from Haeg’s statement. [Exhibit 19 – TR
271-272] Haeg’s testimony at trial was a direct result of Haeg’s
statement. [Exhibits 15 and 37 – TR 741-908] Finally, prosecutor
Leaders was Haeg’s prosecutor at trial and trooper Gibbens was a
witness against Haeg at trial, even though they were the very
people who took Haeg’s statement and thus “incurably tainted” for
use at trial. This “taint” was irrefutably proved by Leaders
arguments –citing innumerable facts from Haeg’s statement – before
any witnesses or evidence was presented at trial. [Exhibit 5 and TR
97-109] On September 8, 2006, the SOA specifically used Haeg’s
immunized statement to oppose Haeg’s appeal: “In June 2004 both
hunters [Haeg and Zellers] were interviewed by troopers and
admitted the knew nine wolves were shot from the airplane while
outside the permit area. Both men were charged with various
criminal accounts. Zellers case resolved by way of a plea agreement
and Haeg proceeded to jury trial where he was convicted.” [Exhibit
30 and AR] The Alaska Court of Appeals, in deciding Haeg’s appeal,
held that Robinson could not bring up Haeg’s statement use in a
reply brief, it had to be brought up in a new motion, thus Haeg’s
right to protest the statement use was “waived.” [AP] In other
words the Court of Appeals ruled Robinson committed an
“unprofessional error” proving “deficient performance”. Haeg filed
a grievance with the Alaska Bar Association of prosecutor Leaders
use of Haeg’s statement in the prosecuting information. Prosecutor
Leaders, in a sworn response, testified under oath he did not use
Haeg’s statement and the proof it was not used was that Haeg’s
attorneys would have filed a motion to suppress if it had. [Exhibit
2] Yet because of Robinson’s May 6, 2005 reply brief protest of
prosecutor Leaders use of Haegs statement, copied to both
prosecutor Leaders and the court, it is irrefutable prosecutor
Leader knew he had used Haeg’s statement and that Haeg’s attorneys
also knew it was being used – proving prosecutor Leaders committed
perjury in his sworn response to cover up he had violated Haeg’s
constitutional right against self incrimination – and used the
“errors” of Haeg’s attorneys to help do so. [Exhibit 17 and MR] 3.
Prejudice
AS 12.50.101 and State of Alaska v. Gonzalez prove beyond doubt
that Haeg could not be prosecuted for actions referred to in his
compelled statement, and thus the counsel from Haeg’s attorneys
that he could be prosecuted for actions referred to in his
compelled statement was false, an “unprofessional error” proving
“deficient performance” – the first criteria of IAOC. In addition,
State of Alaska v. Gonzalez and United States v. North prove beyond
doubt that, even if Alaska law had allowed Haeg to be prosecuted,
his statement could not be used, and thus the counsel from Haeg’s
attorneys that his immunized statement could be used against him
was false, an “unprofessional error” proving “deficient
performance” – the first criteria of IAOC. The prejudice caused by
this “deficient performance” was devastating. Had his attorneys
told him the truth (1) Haeg could never been prosecuted at all, no
matter what evidence the SOA had, after his compelled statement -
proving the prejudice of the false counsel and (2) even if Alaska
law allowed Haeg to be prosecuted Haeg would have required the SOA
to prove, during a Kastigar hearing, that the charging information
and all evidence, witnesses, jurors, and
Page 15 of 43
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prosecutors had no taint whatsoever from his statement – and as
Haeg has irrefutable proof that all these were tainted it means the
prosecution would have ended - proving the prejudice of the false
counsel. The result is a absolute certainty of a difference in the
outcome of Haeg’s case, when the second criteria that must be met
to prove IAOC only requires a reasonable doubt of a different
outcome. E. No Way to Enforce PA or Original Charges
1. Law
All authorities hold it is a violation of due process to allow a
state to break a PA after a defendant has placed detrimental
reliance on it. “When the prosecution makes a 'deal' within its
authority and the defendant relies on it in good faith, the court
will not let the defendant be prejudiced as a result of that
reliance." United States v. Goodrich, 493 F.2d 390, 393 (9th Cir.
1974). “The indictment upon which Garcia's convictions are based
was obtained in violation of the express terms of the agreement and
is therefore invalid. The upholding of the Government's integrity
allows for no other conclusion.” U.S. v. Garcia, 519 F.2d 1343 (9
Circuit 1975) th “Government must adhere strictly to the terms of
agreements made with defendants—including plea, cooperation, and
immunity agreements…” Santobello v. New York, 404 U.S. 257 (U.S.
Supreme Court 1971) “[A] court must carefully scrutinize the
agreement to determine whether the government has performed; in
doing so, court must strictly construe the agreement against the
government.” Stolt-Nielsen v, U.S., 442 F.3d 177 (3d. Cir. 2006)
“Modern notions of due process have belied the notion that a
prosecutor may invoke his discretion to evade promises made to a
defendant or potential defendant as part of an agreement or
bargain. That being the case, a defendant or witness does have more
to rely upon than merely the "grace or favor" of the prosecutor… to
allow the defendant some redress for prosecutorial reneging.”
Surina v. Buckalew, 629 P.2d 969 (Alaska 1981) “Where an accused
relies on a promise… to perform an action that benefits the state,
this individual…will not be able to "rescind" his or her actions. …
In the plea bargaining arena, the United States Supreme Court has
held that states should be held to strict compliance with their
promises. …courts consider the defendant's detrimental reliance as
the gravamen of whether it would be unfair to allow the prosecution
to withdraw from a plea agreement. Closson v. State, 812 P.2d 966
(Ak. 1991) “Detrimental reliance may be demonstrated where the
defendant performed some part of the bargain; for example, where
the defendant provides beneficial information to law enforcement.”
Reed v. Becka, 333 S.C. 676, 511 S.E.2d 396 (Ct. App. 1999)
Page 16 of 43
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“Counsel ineffective for failing to move to compel the state to
comply with pretrial agreement and failing to advise the defendant
of this option.” State v. Scott, 602 N.W.2d 296 Wis. 1999 (O)nce a
prosecutor exercises his discretion to bring certain charges
against the defendant, neither he nor his successor may, without
explanation, increase the number of or severity of those charges in
circumstances which suggest that the increase is retaliation for
the defendant's assertion of statutory or constitutional rights. …
The Alaska Supreme Court has consistently held that courts should
not hesitate to reverse a conviction when a substantial flaw in the
underlying indictment is found, regardless of the strength of the
evidence against the accused or the fairness of the trial leading
to the conviction.” Atchak v. State, 640 P.2d 135 (Ak 1981) Keith
v. State, 612 P.2d 977, 980-81 (Ak 1980); Adams v. State, 598 P.2d
503, 510 (Ak 1979). 2. Facts
Cole told Haeg that he should make a PA to hunting/guiding
charges and told Haeg he negotiated a PA with prosecutor Leaders
that only required Haeg to give up guiding for 1-year. [Exhibit 4]
Cole told Haeg that prosecutor Leaders had agreed to give Haeg
credit for a year of guiding if Haeg gave up the year prior to the
PA being finalized at the court hearing. [Exhibit 4] Cole also said
Haeg had to fly in witnesses from as far away as Illinois for the
PA hearing [Exhibit 4] Haeg gave up the year of guiding and
prosecutor Leaders filed the hunting guide charges agreed to –
charges that would allow Haeg to be sentenced to a 1-year loss of
guide license. [Exhibit 4] Just hours before the PA was to be
finalized by the court prosecutor Leaders, without reason,
increased the severity of the already filed charges so they would
require the court to sentence Haeg to at least a 3-year loss of
guide license. [Exhibit 4 and 11] Even though the guide year given
up was already past and witnesses had already been flown in, and in
response to repeated questions of what could be done, Cole told
Haeg and the witnesses the only thing he could do is “call Leaders
boss, a lady I used to work with.” [Exhibit 4 and 37] Cole also
told Haeg there was nothing he could do to keep prosecutor Leaders
from changing the already filed charges at the last minute.
[Exhibits 4 and 37] In the weeks afterward, when asked if he had
talked to prosecutor Leaders boss, Cole always replied, “I left a
message and she hasn’t got back to me.” [Exhibit 4] Haeg fired Cole
nearly a month after the PA was broken and Haeg’s new attorney,
Robinson, said the PA and everything given for it was “water under
the bridge.” [Exhibit 15] Haeg went to trial on the severe charges,
lost, and subpoenaed Cole to his sentencing so Cole could answer 56
questions Haeg had typed up and demanded Robinson ask Cole answer
under oath. [Exhibits 4, 15, and 20] The questions were about all
that Cole had Haeg do for a PA with lesser charges that only
required Haeg to give up 1 year of guiding, that year had already
been
Page 17 of 43
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given up, and that Cole said nothing could be done to enforce
except to leave a message for someone who never got back to him.
[Exhibit 20] Cole never showed up in response to the subpoena and
airline ticket to sentencing. [Exhibit 4] Robinson told Haeg there
was nothing that could be done to enforce the subpoena. [Exhibit
15] Robinson refused to ask the typed questions Haeg demanded be
asked of the witnesses present at sentencing who had also been
present when Cole had said nothing could be done to enforce the PA
upon which so much detrimental reliance had been placed – even
though the night before Robinson had promised to ask them. [Exhibit
37] The SOA testified they had no idea why Haeg did not guide for a
year [Exhibit 21 and TR 1335] – in exact opposition to what Cole
had said. [Exhibit 4] Haeg was sentenced to a 5-year loss of his
guide license without credit for the year he had already given up
on prosecutor Leaders’ promise he would get credit. [TR] The Alaska
Court of Appeals ruled that since Haeg didn’t request the PA ,
subpoena, or original charges be enforced he waived his rights to
do so. [AR] At Fee Arbitration Cole testified that since prosecutor
Leaders did not give Haeg credit for the year Haeg had given up in
reliance on prosecutor Leaders’ promise to give credit, Haeg
effectively received a 6-year loss of guide license. [Exhibit 4] 3.
Prejudice
All ruling authorities hold something could be done other then
“calling Leaders boss” to enforce Haeg’s PA (motions to enforce,
dismiss, or for specific performance), upon which he had placed so
much detrimental reliance, and to enforce the original charges
against Haeg, and thus the counsel from Haeg’s attorneys that
nothing could be done other then “calling Leaders boss” was false,
an “unprofessional error” proving “deficient performance” – the
first criteria of IAOC. The prejudice caused by this “deficient
performance” was devastating. Had his attorneys told him the truth
(1) Haeg would have moved to enforce, because of immense
detrimental reliance, the PA that only required 1 year of guiding
be given up. Haeg has, as of September 26, 2009, already been
forced to give up 4 years of guiding in addition to the year he had
already given up on prosecutor Leaders promise (for a total of
5-years and counting). By Haeg’s arithmetic this means he has
already suffered the undeniable prejudice of 4 additional years
(and counting) without a guide license (while still having to pay
many thousands a year for his lodge and hunting camp leases) -
proving the prejudice of the false counsel; (2) Haeg would never
been convicted of and sentenced for charges that were far more
severe - proving the prejudice of the false counsel; (3) Haeg would
have received credit for the year he never got credit for - proving
the prejudice of the false counsel; (4) Haeg would not have wasted
all the money he spent to get all the witnesses to the PA hearing
from as far away as Illinois – proving the prejudice of the false
counsel; (5) Haeg would not have had the huge cost of conducting an
entire trial in
Page 18 of 43
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McGrath – proving the prejudice of the false counsel; and (6)
Haeg would have realized and motioned that his entire trial and
sentencing was null and void because he had bought and paid for
(with the guide year and witness costs given up on prosecutor
Leaders’ promise of lesser charges) lesser charges then what he had
just been convicted of and sentenced for – proving the prejudice of
the false counsel. In addition, because prosecutor Leaders, without
reason, increased the severity of already filed charges in
circumstances suggesting the increase was in retaliation for Haeg
asserting his right receive the PA and lesser charges for which he
had paid so much for, Haeg would have cited Atchak v. State to
prevent the increase – proving the prejudice of the false counsel.
The result is absolute certainty of a difference in the outcome of
Haeg’s case, when the second criteria that must be met to prove
IAOC only requires a reasonable doubt of a different outcome. F. No
Way to Protest the SOA Presenting Known False Testimony at
Trial
1. Law
All authorities hold it is a violation of due process to allow a
state to use false evidence and testimony. "[T]he dignity of the
U.S. Government will not permit the conviction of any person on
tainted testimony. The government of a strong and free nation does
not need convictions based upon such testimony. It cannot afford to
abide with them." Mesarosh v. U.S., 352 U.S. 1 (U.S. Supreme Court
1956) "Conviction obtained through use of false evidence, known to
be such by representatives of the State, is a denial of due
process, and there is also a denial of due process, when the State,
though not soliciting false evidence, allows it to go through
uncorrected when it appears. Principle that a State may not
knowingly use false evidence, including false testimony, to obtain
a tainted conviction, implicit in any concept of ordered liberty,
does not cease to apply merely because the false testimony goes
only to the credibility of the witness." Napue v. Illinois, 360
U.S. 264 (U.S. Supreme Court 1959) "Requirement of 'due process' is
not satisfied by mere notice and hearing if state, through
prosecuting officers acting on state's behalf, has contrived
conviction through pretense of trial which in truth is used as
means of depriving defendant of liberty through deliberate
deception of court and jury by presentation of testimony known to
be perjured, and in such case state's failure to afford corrective
judicial process to remedy the wrong when discovered by reasonable
diligence would constitute deprivation of liberty without due
process." Mooney v. Holohan, 294 U.S. 103 (U.S. Supreme Court 1935)
“The principle that a State may not knowingly use false evidence,
including false testimony, to obtain a tainted conviction, [is]
implicate in any concept of ordered liberty…” Giles v. Maryland,
386 U.S. 66 (U.S. Supreme Court 1967)
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“We hold the Due Process Clause of the Fifth Amendment is
violated when a defendant has to stand trial on an indictment which
the government knows is based partially on perjured testimony…”
United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) 2. Facts The
SOA falsified all evidence locations to Haeg’s 19C hunting guide
area on all affidavits in order to obtain search and seizure
warrants for Haeg’s home and property. [Exhibit 1] The SOA used
these false warrants to search and seize property and evidence from
Haeg’s home and property. [Exhibit 1] The SOA’s justification for
hunting/guiding charges was that the evidence locations proved Haeg
took wolves where he guides hunts, locations that the SOA had
falsified. [Exhibit 33 and TR] Haeg’s attorneys told Haeg nothing
could be done about the SOA falsifying the evidence locations and
nothing could be done about the false warrants or seizure.
[Exhibits 4, 15, and 37] During their immunized statements to
prosecutor Leaders and trooper Gibbens (defense attorneys present),
Haeg’s and Zellers’ stated and proved the SOA had falsified the
evidence locations to Haeg’s hunting guide area. [Exhibits 5 and 7]
During Haeg’s trial trooper Gibbens testified, in response to
prosecutor Leaders questioning, the evidence locations were located
in Game Management Unit 19C - where Haeg guided hunts. [Exhibit 18
and TR 418-420] Prosecutor Leaders accepted this testimony, even
though both Haeg and Zellers had told him it was false. [Exhibit 18
and TR 418-420] Only at Haeg’s insistence was Gibbens
cross-examined by Robinson on the evidence location, where Gibbens
admitted no evidence was found 19C – it was all found in GMU 19D –
the same GMU in which the WCP was taking place. [Exhibit 18 and TR
478-479] Haeg asked what could be done about this admitted perjury
and Robinson said nothing could be done – no motion for dismissal
with prejudice or for mistrial, nothing, even though this meant
trooper Gibbens had just admitted the SOA’s entire case, from all
physical evidence to warrants to sworn testimony, was now based on
false evidence locations material to the SOA’s case. [Exhibit 15
and TR] Haeg’s trial continued as if nothing had happened, Haeg was
convicted, and to justify Haeg’s severe sentence the Court said it
was because the “majority if not all” the wolves were taken where
Haeg hunts, when not a single wolf was taken where Haeg hunts –
proving the prejudice, even after they had admitted it was false,
of the SOA’s known false testimony during the years from search
warrant affidavits to trial testimony. [Exhibit 22 - TR 1437-1441]
Robinson did not object to the false justification by Haeg’s court.
[TR] 3. Prejudice
The United States Supreme Court in Mesarosh v. U.S., Napue v.
Illinois, Mooney v. Holohan, and Giles v. Maryland proves beyond
doubt that there was something that could be done, and had to be
done, about the SOA presenting known material false testimony
against Haeg at trial,
Page 20 of 43
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and thus the counsel from Haeg’s attorneys that nothing could be
done was false, an “unprofessional error” proving “deficient
performance” – the first criteria of IAOC. The prejudice caused by
this “deficient performance” was devastating. Had his attorneys
told him the truth (1) Haeg would have moved that the case against
him be dismissed with prejudice or moved for a mistrial to cure the
taint, that Haeg’s actions were to benefit his business, that now
permeated the entire trial – as is guaranteed by the United States
Supreme Court’s in Mesarosh v. U.S., Napue v. Illinois, Mooney v.
Holohan, and Giles v. Maryland - either ending Haeg’ s prosecution
entirely or giving Haeg a second prosecution in which the SOA’s
would not have been allowed to manufacture a hunting/guiding case -
proving the prejudice of the false counsel; (2) the courts
justification for Haeg’s severe sentence would have vanished – a
justification that irrefutably proved the prejudice of the false
counsel - and if Haeg’s judge specifically used the known false
testimony by the SOA to justify Haeg’s sentence, exactly what did
Haeg’s jury use to justify convicting him? The result is absolute
certainty of a difference in the outcome of Haeg’s case, when the
second criteria that must be met to prove IAOC only requires a
reasonable doubt of a different outcome. G. No Way to Enforce
Subpoena
1. Law
Alaska Rule of Crimial Procedure 17. SUBPOENA (g) Contempt.
Failure by any person without adequate excuse to obey a subpoena
served upon that person may be deemed a contempt of the court from
which the subpoena issued. 2. Facts
Haeg demanded Robinson subpoena Cole and Fitzgerald (Zellers
attorney) to Haeg’s sentencing in order that the court could be
told of the year of guiding, and all the witnesses Haeg had flown
in, given for a PA the SOA broke at the last minute, with Cole
telling Haeg nothing could be done to enforce it. [Exhibits 4, 15,
and 37] Haeg had typed up and given Robinson 56 questions about all
this that he demanded Robinson ask of Cole while Cole was on the
witness stand. [Exhibit 20] Robinson told Haeg that Cole knew more
of what happen for and with the PA so there was no reason to
subpoena Fitzgerald. [Exhibit 15] Haeg paid Robinson to subpoena
Cole, paid for the subpoena to be delivered, paid Cole’s witness
fees, paid Cole’s airline ticket to Haeg’s sentencing, and paid
Cole’s room in McGrath and then Cole never showed up to Haeg’s
sentencing. [Exhibit 4 and 37] Robinson told Haeg nothing could be
done about Cole’s failure to obey the subpoena. [Exhibit 15 and
37]
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On appeal the Alaska Court of Appeals ruled that since “Haeg”
never asked the court to “enforce the subpoena” Haeg “waived” this
“error”. [AR] 3. Prejudice
Alaska Rule of Crimial Procedure 17(g) and the Alaska Court of
Appeals ruling prove beyond doubt that there was something that
could be done about Cole not showing up in response to a subpoena,
and thus the counsel from Haeg’s attorneys that nothing could be
done was false, an “unprofessional error” proving “deficient
performance” – the first criteria of IAOC. The prejudice caused by
this “deficient performance” was devastating. Had his attorneys
told him the truth (1) Haeg would have moved to enforce the
subpoena, which meant Cole would have testified about all Haeg had
done (guide year given up, witnesses flown in, etc) for a PA with
lesser charges – meaning Haeg had just been convicted of and was
being sentenced for, charges that were unconstitutional – proving
the prejudice of the false counsel and (2) Cole’s testimony would
have ensured Haeg received credit for the year Cole told Haeg that
prosecutor Leaders had promised Haeg (credit which Haeg never
received) – irrefutably proving the prejudice of the false counsel.
The result is absolute certainty of a difference in the outcome of
Haeg’s case, when the second criteria that must be met to prove
IAOC only requires a reasonable doubt of a different outcome. H. No
Way to Get Credit for Year of Guiding Already Given Up
1. Law
All authorities hold that Haeg must have been given credit for
the year of guiding given up in reliance on prosecutor Leaders’
promise.
“The basic Fifth Amendment guarantee against double jeopardy,
which is enforceable against the States by the Fourteenth Amendment
is violated when punishment already exacted for an offense is not
fully "credited" in imposing a new sentence for the same offense .
. .. [T]he Constitution was designed as much to prevent the
criminal from being twice punished for the same offence as from
being twice tried for it. We hold that the constitutional guarantee
against multiple punishments for the same offense absolutely
requires that punishment already exacted must be fully "credited"
in imposing sentence…” North Carolina v. Pearce, 395 U.S. 711 (U.S.
Supreme Court 1969) 2. Facts
Haeg gave up a year of putting food in his wife and daughters
mouth for a PA and in reliance on prosecutor Leaders promise he
would get credit for it. [Exhibits 4 and 37] When prosecutor
Leaders broke the PA, after the year given up for the PA was
already past, Haeg’s attorneys told Haeg there was no way to get
credit for the year. [Exhibit 4 and 37]
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3. Prejudice
As proved by North Carolina v. Pearce Haeg “absolutely” had to
be given credit for the year already given up, and thus the counsel
from Haeg’s attorneys that he could not get credit was false, an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. The prejudice caused by this “deficient
performance” was devastating. Had his attorneys told him the truth
(1) Haeg would have demanded, and received, credit for the year –
proving the prejudice of the false counsel and (2) Haeg, once he
receive “credit” for the year would have asked that his conviction
and sentence be dismissed with prejudice because the “credit “ he
had just received proved he had bought and paid for charges far
less severe than what he had just been convicted of and sentenced
for - proving the prejudice of the false counsel. The result is
absolute certainty of a difference in the outcome of Haeg’s case,
when the second criteria that must be met to prove IAOC only
requires a reasonable doubt of a different outcome. I. No Way to
Appeal Sentence
1. Law
Alaska Rule of Crimial Procedure 32.5 Appeal From Conviction or
Sentence--Notification of Right to Appeal. A person convicted of a
crime after trial shall be advised by the judge or magistrate… at
the time of imposition of any sentence of imprisonment, the judge
or magistrate shall advise the defendant as required by Appellate
Rule 215(b). Appellate Rule 215. Sentence Appeal. (a) Appellate
Review of Sentence. (5) Right to Seek Discretionary Review for
Excessiveness. A defendant may seek discretionary review of an
unsuspended sentence of imprisonment which is not appealable under
subparagraph (a)(1) by filing a petition for review in the supreme
court under Appellate Rule 402. A defendant who is filing a
sentence petition and a sentence appeal, or a sentence petition and
a merit appeal, must follow the procedure set out in paragraph (j).
(b) Notification of Right to Seek Review of Sentence. At the time
of imposition of any sentence of imprisonment, the judge shall
inform the defendant of the defendant's right to appeal or petition
for review of the sentence
Alaska Rule of Crimial Procedure 35. Reduction, Correction or
Suspension of Sentence. (b) Modification or Reduction of Sentence.
The court (1) may modify or reduce a sentence within 180 days of
the distribution of the written judgment upon a motion made in the
original criminal case; Courts may not actually rely on inaccurate
information in sentencing a defendant. Actual reliance is
demonstrated when the court gives “explicit attention” to the
inaccurate information. United States v. Tucker, 404 U.S. 443 (U.S.
Supreme Court 1972) 2. Facts
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Cole, a material witness that Haeg had subpoenaed to his
sentencing, failed to appear. [Exhibit 4]
Haeg’s judge specifically used known material false testimony by
the SOA to justify Haeg’s sentence. [Exhibit 22 – TR 1437-1441]
When sentence was imposed upon Haeg his judge never informed him of
his Right to Seek Review of Sentence, as required by Criminal Rule
32.5 and Appellate Rule 215(b). [TR] When Haeg asked if he could
appeal his sentence Robinson said he could not. [Exhibit 15] 3.
Prejudice
Criminal Rules 32.5 and 35 and Appellate Rule 215 prove Haeg had
a right to appeal his sentence, and thus the counsel from Haeg’s
attorneys that he could not appeal his sentence was false, an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. The prejudice caused by this “deficient
performance” was devastating. Had his attorneys told him the truth
(1) Haeg would have appealed his sentence, demanding Cole be forced
to appear and testify that Haeg had already given up an entire year
of guiding on prosecutor Leaders promise - proving the prejudice of
the false counsel; (2) Haeg, once he receive “credit” for the year
would have asked that his conviction and sentence be dismissed with
prejudice because the “credit “ he had just received proved he had
bought and paid for charges far less severe than what he had just
been convicted of and sentenced for - proving the prejudice of the
false counsel; and (3) citing United States v. Tucker Haeg would
have protested the courts actual use of the SOA’s known and
admitted false testimony to justify Haeg’s sentence - proving the
prejudice of the false counsel. The result is absolute certainty of
a difference in the outcome of Haeg’s case, when the second
criteria that must be met to prove IAOC only requires a reasonable
doubt of a different outcome. J. Subject-Matter Jurisdiction Tactic
is Good
1. Law
Subject-Matter jurisdiction is granted by statute.
AS 22.15.060 Criminal Jurisdiction (a) The district court has
jurisdiction (1) of the following crimes: (A) a misdemeanor 2.
Facts
Haeg was prosecuted for misdemeanors in the district court. [TR]
Robinson told Haeg that the district court did not have
jurisdiction over Haeg because prosecutor Leaders did not provide
an affidavit to support the information he filed against Haeg.
[Exhibit 15
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and MR] Robinson said for this tactic to work Haeg must hide
from the court of all he had done for the PA as this would “admit’
Haeg had ”submitted” to the court’s jurisdiction. [Exhibit 15]
Robinson told Haeg to go to trial, not put on any evidence because
it was a waste of money, and that Haeg would then “win on appeal”
with the jurisdiction tactic. [Exhibit 15] Haeg researched this and
found all ruling authorities hold a prosecutor’s oath of office is
sufficient to verify informations. [Exhibit 15] When Haeg
confronted Robinson he admitted the court may have “personal
jurisdiction” but then claimed the court would not have
“subject-matter” jurisdiction. [Exhibit 15] Haeg was convicted,
Robinson told Haeg no issue other then the lack of subject-matter
jurisdiction was worth appealing, and only appealed lack of
subject-matter jurisdiction. [Exhibit 15 and 23] 3. Prejudice
AS 22.15.060 proves Haeg’s court had subject-matter
jurisdiction, and thus the counsel from Haeg’s attorneys the court
did not have subject-matter jurisdiction was false, an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. The prejudice caused by this “deficient
performance” was devastating. Had his attorneys told him the truth
(1) Haeg would not have given up numerous irrefutable
constitutional defenses to “help” pursue a nonexistent defense -
proving the prejudice of the false counsel. The result is absolute
certainty of a difference in the outcome of Haeg’s case, when the
second criteria that must be met to prove IAOC only requires a
reasonable doubt of a different outcome.
III
INADEQUATE COUNSEL AND PREJUDICE A. Property Forfeited With
Inadequate Notice 1. Law In order to criminally forfeit a defendant
’s property, the indictment or information must contain a
forfeiture count or allegation that alleges the extent of the
defendant ’s interest in the property. The primary purpose of this
requirement is to put the defendant on the constitutionally
required notice that his/her property is subject to forfeiture. The
insertion of a forfeiture count or allegation in the indictment
provides a basis for the issuance of pretrial restraining orders
and criminal seizure warrants, puts third parties on notice that
the government has an interest in the defendant’s assets that are
subject to forfeiture, and may establish a factual basis for the
forfeiture of the defendant’s assets in connection with a guilty
plea. To forfeit a defendant’s assets as part of a plea agreement,
the indictment or information must include a forfeiture count
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or allegation, and the defendant must plead to a statutory
violation that provides for forfeiture upon conviction. Otherwise,
the forfeiture will be invalid even though the defendant may have
been willing to agree to forfeiture in the plea agreement. Willis
v. United States, 787 F.2d 1089, 1093 (7th Cir. 1986) United States
v. Boffa, 688 F.2d 919, 939 (3rd Cir. 1982) United States v.
Grammatikos, 633 F.2d 1013, 1024 (2nd Cir. 1980) Unitet States v.
Raimondo, 721 F2d 476 (4th Cir. 1983) United States v. Peascock,
654 F.2d 339, 351 (5th Cir. 1981) United States v. Davis, 177
F.Supp 2d 470, 484 (E.D. Va 2001) See also Federal Rule of Criminal
Procedures 7(c)(2)and 32.2(a) Rule 7(c)(2) Criminal Forfeiture No
judgment of forfeitrue may be entered in a criminal proceeding
unless the indictment or the information provides notice that the
defendant has an interest in property that is subject to forfeiture
in accordance with the applicable statute. Rule 32.2(a) Notice to
the Defendant A court must not enter a judgment of forfeiture in a
criminal proceeding unless the indictment or information contains
notice to the defendant that the government will seek the
forfeiture of property as part of any sentence in accordance with
the applicable statute. 2. Facts Haeg’s property was forfeited
without a forfeiture count or allegation in the information.
[Exhibits 9, 11, and 12] Haeg’s attorneys never told Haeg that
without a forfeiture count or allegation in the information Haeg’s
property could not legally be forfeited. [Exhibits 4 and 15] 3.
Prejudice The U.S. Constitution requires notice of intent to
forfeit property in the charging information, and thus the lack of
counsel from Haeg’s attorneys that his property could not be
forfeited without notice in the information was an “unprofessional
error” proving “deficient performance” – the first criteria of
IAOC. The prejudice caused by this “deficient performance” was
devastating. Had his attorneys adequately informed him (1) Haeg
would not have had nearly $100,000 in property forfeited - proving
the prejudice of the inadequate counsel. The result is absolute
certainty of a difference in the outcome of Haeg’s case, when the
second criteria that must be met to prove IAOC only requires a
reasonable doubt of a different outcome. B. Sentence Based on
Misinformation
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1. Law A defendant must be given a new sentencing if inaccurate
information was relied upon in imposing sentence. A sentencing
court demonstrates actual reliance on misinformation when the court
gives “explicit attention” to it, “found[s]” its sentence “at least
in part” on it, or gives “specific consideration” to the
information before imposing sentence. “For we deal here not with a
sentence imposed in the informed discretion of a trial judge, but
with a sentence founded at least in part upon misinformation...”
United States v. Tucker, 404 U.S. 443 (U.S. Supreme Court 1972)
United States ex rel. Welch v. Lane, 783 F.2d 863, 865 (7th Cir.
1984) “We believe that on the record before us, it is evident that
this uncounseled defendant was either overreached by the
prosecution's submission of misinformation to the court or was
prejudiced by the court's own misreading of the record. Counsel,
had any been present, would have been under a duty to prevent the
court from proceeding on such false assumptions and perhaps under a
duty to seek remedy elsewhere if they persisted. Such a result,
whether caused by carelessness or design, is inconsistent with due
process of law, and such a conviction cannot stand. We would make
clear that we are not reaching this result because of petitioner's
allegation that his sentence was unduly severe. The sentence being
within the limits set by the statute, its severity would not be
grounds for relief here even on direct review of the conviction,
much less on review of the state court's denial of habeas corpus.
It is not the duration or severity of this sentence that renders it
constitutionally invalid; it is the careless or designed
pronouncement of sentence on a foundation so extensively and
materially false, which the prisoner had no opportunity to correct
by the services which counsel would provide, that renders the
proceedings lacking in due process. In this case, counsel might not
have changed the sentence, but he could have taken steps to see
that the conviction and sentence were not predicated on
misinformation or misreading of court records, a requirement of
fair play which absence of counsel withheld from this prisoner.”
Townsend v. Burke, 334 U.S. 736, 741 (U.S. Supreme Court 1948) 2.
Facts The court’s specific justification for Haeg’s severe sentence
was “since the majority, if not all the wolves were taken in
19C…where you were hunting.” [Exhibit 22 – TR 1437-1441] The SOA
had placed this same information in every affidavit the court
relied upon to issue search and seizure warrants and this had been
the SOA’s testimony at trial – stating this justified Haeg being
found guilty of guiding charges, as taking wolves where he hunted
benefited his guide business. Yet after years of this false
testimony the SOA had been forced to admit, during trial
cross-examination, they knew this information was completely false
– that all evidence was found in 19D – where Haeg was not allowed
to guide hunters. [Exhibit 18 – TR 478-479] Haeg’s attorneys never
told him that his severe sentence could not be based on
misinformation. Even the SOA admitted Haeg’s sentence was severe.
[Exhibit 14] 3. Prejudice
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The U.S. Constitution prohibits a sentence from being based on
misinformation, and thus the lack of counsel from Haeg’s attorneys
that he could not be sentenced on specific misinformation was an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. The prejudice caused by this “deficient
performance” was devastating. Had Haeg’s attorneys adequately
informed him the specific justification Haeg’s court used to impose
a severe sentence would have vanished. Also, if Haeg had a new
sentencing he would have made sure Cole testified this time no
matter how he conspired with Robinson to avoid doing so. This would
have meant Haeg would have received credit for the guide year
already given up for lesser charges and a sentence that only
required a 1-year loss of guide license – credit that proved Haeg
had just been convicted of and sentenced for charges not allowed by
the United States Constitution. And if Haeg’s court specifically
used the SOA’s misinformation to justify Haeg’s sentence exactly
what did Haeg’s jury, who were also presented the manufactured
justification for a guiding conviction was that Haeg took wolves
where he guided hunters (along with being deprived of the knowledge
the SOA suggested and induced Haeg’s actions) use to convict him?
The result is a certain difference in the outcome of Haeg’s case,
when the second criteria that must be met to prove IAOC only
requires a reasonable doubt of a different outcome. C. Revocation
Instead of Suspension 1. Law Alaska Statute 08.54.720(f)(3) states
that a the court shall order the board to suspend the guide license
for a specified period of not less then three years, or to
permanently revoke the guide license, of a person who commits an
offense set out in (a)(15) of AS 08.54.720. 2. Facts Haeg was
convicted of AS 08.54.720(a)(15) and was sentenced to a 5-year
revocation of his guide license. [TR] Haeg’s attorney never told
him that his license could only be suspended for 5-years, not
revoked for 5-years. Haeg’s attorneys only told him that since his
sentence was legal it could not be appealed – when, according to AS
08.54.720(f)(3), it was not legal. [Exhibits 15 and 23] 3.
Prejudice AS 08.54.720(a)(15) only allows a guide license to be
suspended for 5-years – not revoked for 5-years, and thus the lack
of counsel from Haeg’s attorneys that his guide license could not
be revoked for 5-years was an “unprofessional error” proving
“deficient performance” – the first criteria of IAOC.
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The federal government landowner, where many of Haeg’s hunting
camps were located, told Haeg their rules did not allow Haeg to
keep these camps if his license were revoked instead of suspended –
stating a suspended license meant Haeg still had the required
license but a revoked license meant Haeg did not. Because of the
inadequate counsel from Haeg’s attorneys he was forced to give up
irreplaceable hunting camps put in at enormous cost. [Exhibit 37]
The result is an absolute difference in the outcome of Haeg’s case,
when the second criteria that must be met to prove IAOC only
requires a reasonable doubt of a different outcome. D. Apparent
Bias of Judge Murphy 1. Law A trial judge’s involvement with
witnesses establishes a personal, disqualifying bias. Bracy v.
Gramley, 520 U.S. 899 (U.S. Supreme Court 1997) “A fair trial in a
fair tribunal is a basic requirement of due process. Fairness, of
course, requires an absence of actual bias in the trial of cases.
But our system of law has always endeavored to prevent even the
probability of unfairness. To this end, no man can be a judge in
his own case, and no man is permitted to try cases where he has an
interest in the outcome. That interest cannot be defined with
precision. Circumstances and relationships must be considered. This
Court has said, however, that ‘Every procedure which would offer a
possible temptation to the average man as a judge . . . not to hold
the balance nice, clear, and true between the State and the accused
denies the latter due process of law.’ Tumey v. Ohio, 273 U. S.
510, 273 U. S. 532. Such a stringent rule may sometimes bar trial
by judges who have no actual bias and who would do their very best
to weigh the scales of justice equally between contending parties.
But, to perform its high function in the best way, ‘justice must
satisfy the appearance of justice.’” In re Murchison, 349 U.S. 133
(U.S. Supreme Court 1955) Withrow v. Larkin, 421 U.S. 35 (U.S.
Supreme Court 1975) Liteky v. United States, 510 U.S. 540 (U.S.
Supreme Court 1994) Alaska Code of Judicial Conduct: Canon 2. A
Judge Shall Avoid Impropriety and the Appearance of Impropriety in
All of the Judge's Activities. The prohibition against behaving
with impropriety or the appearance of impropriety applies to both
the professional and personal conduct of a judge. Because it is not
practicable to list all prohibited acts, the proscription is
necessarily cast in general terms that extend to conduct by judges
that is harmful although not specifically mentioned in the Code.
The test for appearance of impropriety is whether the conduct would
create in reasonable minds a perception that the judge's ability to
carry out judicial responsibilities with integrity, impartiality,
and competence is impaired. A judge must perform judicial duties
impartially and fairly. A judge who manifests bias on any basis in
a proceeding impairs the fairness of the proceeding and brings the
judiciary into disrepute. Facial expression and body language, in
addition to oral communication, can give others an appearance of
judicial bias. A judge must be alert to avoid behavior that may be
perceived as an expression of prejudice.
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http://supreme.justia.com/us/273/510/case.htmlhttp://supreme.justia.com/us/273/510/case.html#532
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2. Facts Trooper Gibbens, the state’s main investigator and
witness against Haeg, chauffeured Judge Murphy everywhere on every
day of Haeg’s trial and sentencing – in front of Haeg’s jury. This
chauffeuring included having meals together. [Exhibits 16 and 37 –
TR 1262-1263] This chauffeuring was documented in the official
record of Haeg’s trial. [Exibit 16] Haeg’s attorneys never told him
that Judge Murphy openly and regularly consorting with a principal
witness against Haeg was ground for a new judge and/or mistrial.
When, long after he was sentenced, Haeg complained of this bias to
the Alaska Commission on Judicial Conduct, trooper Gibbens and
Judge Murphy falsely testified to the Commission that this never
happened (false testimony irrefutably proven by the official record
[Exhibit 16 – TR 1262-1263]) – which resulted in the investigation
being dismissed. [Exhibit 32] 3. Prejudice Haeg’s judge exhibiting
such bias, made far worse by her subsequent false testimony to the
Alaska Commission on Judicial Conduct to cover it up, was ground
for a mistrial. This means the inadequate counsel allowing Haeg to
be placed on trial with an irrefutably biased judge was an
“unprofessional error” proving “deficient performance” – the first
criteria of IAOC. The result i